F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

DEC 4 1997

PATRICK FISHER
Clerk

KAMAL K. PATEL,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA;
BUREAU OF PRISONS; TOM (I)
WOOTEN, Ex-Warden, FCI Florence;
LOU ROCKVAN, Food Service
Administrator; JENNY ROPER, ExFood Service Administrator; FNU
BELL, Assistant Food Service
Administrator; FNU FISHMAN, Food
Service Employee; GIL LYDE, Unit
Manager; FNU PELTIER, Counselor;
KEN LINCOLN, Counselor; FNU
McNAMARA, Food Service
Employee; N. WAYNE SMITH,
Associate Warden and One John Doe,
Food Service Employees; J. ARMIJO,

No. 97-1083
(D.C. No. 96-M-286)
(D. Colo.)

Defendants-Appellees.
ORDER AND JUDGMENT *

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff, a federal inmate appearing pro se, appeals from the district
courts grant of summary judgment to defendants in his action brought pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). We have
jurisdiction under 28 U.S.C. 1291.
Plaintiff, a Hindu, was incarcerated at the Federal Correctional Institution,
Florence, Colorado (FCI Florence) from March 25, 1993 until January 26, 1997.
He maintains that as a Hindu, he may not eat meat or foods prepared with utensils
that have been contaminated by meat. He participated in the prisons common
fare religious diet program from September 9, 1994 until January 15, 1995, in an
attempt to receive food satisfying his religious restrictions. For the rest of his
time at FCI Florence, plaintiff took food off the main cafeteria line. In his
complaint, he asserted that defendants denied him food conforming to his
religious beliefs while he was housed at FCI Florence, in contrast to their practice
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.

**

-2-

of accommodating the dietary needs of Jewish and Muslim inmates, and in

violation of the United States Constitution, the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. 2000bb to 2000bb-4, and their own regulations. He
also alleged that defendants seized his copy of the Bhagvad Gita, the Hindu
equivalent of the Christian Bible, in violation of his constitutional rights. He
sought damages and declaratory and injunctive relief. Defendants filed a motion
to dismiss or, in the alternative, for summary judgment. They asserted, among
other defenses, their entitlement to qualified immunity on plaintiffs claims
concerning his diet. They denied that any of them had seized plaintiffs holy
book, and argued that plaintiff had not exhausted his administrative remedies on
his claim that his holy book was unlawfully seized.
The magistrate judge recommended that defendants motion be granted in
part and denied in part. 1 The district court reviewed the case de novo and granted

Plaintiff requested that his claims for injunctive relief regarding the alleged
seizure of his Bhagvad Gita and his claims for damages against defendants in
their official capacities be dismissed; the magistrate judge therefore included
these requests in his recommendations. The magistrate judge further
recommended that summary judgment be granted in favor of defendant Smith, as
plaintiff had not shown that Smith personally participated in the claims related to
his diet. The magistrate judge also recommended that summary judgment be
granted in favor of the United States and the Bureau of Prisons on the basis of
their sovereign immunity. Plaintiff has waived any arguments to these adverse
recommendations because he did not object to the magistrate judges findings and
recommendation. See Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.
1992). They are also supported by the record and the law.

-3-

the motion in it entirety. It held that plaintiffs claims for injunctive relief were
moot because plaintiff had been transferred away from FCI Florence. It held,
further, that plaintiff did not have a clearly established constitutional right to a
diet conforming to his religious beliefs, and that defendants were entitled to
qualified immunity on plaintiffs claims related to his diet as a result. The court
held that plaintiff had not shown that defendants acted with the intention to
deprive him of his holy book, and that his claims that it was unlawfully seized
were therefore inadequate. The court also held that plaintiff had failed to exhaust
his administrative remedies on claims related to his book.
On appeal, plaintiff argues that the district court erred: (1) in dismissing
his claims that defendants failed to provide him with a diet conforming to his
religious practice in violation of the First, Fifth, and Eighth Amendments, the
Religious Freedom Restoration Act, and their own regulations; (2) in dismissing
his claim that some of the defendants seized his Bhagvad Gita in violation of the
First Amendment; and (3) in holding that defendants were entitled to qualified
immunity.
We note at the outset that the district court correctly dismissed plaintiffs
claims for injunctive relief. Plaintiffs claims for declaratory relief are likewise
moot. He has been transferred away from FCI Florence and there is no indication

-4-

that he will be transferred back. Only plaintiffs claims for money damages
remain.
In addition, the Supreme Court has recently held the Religious Freedom
Restoration Act unconstitutional. See City of Boerne v. Flores, 117 S. Ct. 2157,
2172 (1997). We therefore need not consider the merits of plaintiffs RFRA
claim.
We review the grant of summary judgment de novo, applying the same
standard as that applied by the district court. See Clemmons v. Bohannon,
956 F.2d 1523, 1525 (10th Cir. 1992). Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law. Id. (quoting Fed. R. Civ. P. 56(c)).
We also review de novo defendants claim that they are entitled to qualified
immunity. See Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). Qualified
immunity is analyzed in two steps: first, we determine whether plaintiff has
alleged the violation of a constitutional right, and then we decide whether that
right was clearly established such that a reasonable person in the defendants
position would have known that [his] conduct violated the right. Id. (quoting

-5-

Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996) (citing Siegert v.
Gilley, 500 U.S. 226, 231 (1991))).
Plaintiff adequately alleged that defendants failed to accommodate his
religious dietary needs in violation of the First and Fifth Amendments. Thus, the
first part of the qualified immunity inquiry is satisfied. As for the second step, it
was established in this circuit in 1991 that prisoners have a constitutional right to
a diet conforming to sincerely held religious beliefs, unless the regulation denying
that accommodation is reasonably related to legitimate penological interests.
LaFevers v. Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991) (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)). Because plaintiffs complaint relates to events
that are alleged to have occurred in 1993 or later, defendants are not entitled to
qualified immunity on the claims related to his diet.
Plaintiff must demonstrate, however, that each remaining defendant
personally participated in the alleged deprivation of his constitutional rights. See
Kaul v. Stephan, 83 F.3d 1208, 1213 & n.3 (10th Cir. 1996) ( 1983 case).
Evidence in the record shows that defendants Wooten, Bell, Rockvam, 2 and Roper
knew that plaintiff requested meat substitutes for religious reasons. See
R. doc. 41, ex. 16, 20; doc. 52, PE 5, 7. Plaintiff has therefore established a

The government informs the court that plaintiff erred, and that this
defendants name is Rockvam.

-6-

genuine issue of material fact as to these defendants, and his First Amendment
claim must be remanded. There is no evidence to show that defendants Fishman,
Lyde, Peltier, Lincoln, McNamara, Armijo, or One John Doe knew about
plaintiffs religious beliefs as they related to his diet, however. These defendants
are therefore entitled to summary judgment on all of plaintiffs claims related to
his diet.
Plaintiffs equal protection claim must also be remanded for further
proceedings. Cf. LaFevers, 936 F.2d at 1120 (remanding state inmates equal
protection claim for determination whether his religious dietary requirements
were sincerely held). Plaintiff has pointed out that defendants regulation for the
common fare religious diet program purports to accommodate religious dietary
needs. See R. doc. 41, ex. 3. He alleges in his affidavit, however, that he has
observed that Muslim inmates are provided a pork substitute, while Hindu inmates
are not afforded a meat substitute. See id. doc. 52, PE 2 at 1-2. Defendants have
asserted no reason, at this point, that would justify treating Muslims and Hindus
differently with respect to diet substitutions. Plaintiff has sufficiently supported
his equal protection claim at this juncture. Cf. Abbott v. McCotter, 13 F.3d 1439,
1441 (10th Cir. 1994) (affirming dismissal of prisoners conclusory allegations
that failed to describe different treatment of classes of inmates).

-7-

Plaintiffs Eighth Amendment claim was properly dismissed. Plaintiff

alleged that during a three-week lockdown in late 1995, he was frequently given
two meat sandwiches in his brown bag meal instead of one meat and one meatless
sandwich, and was subjected to severe hunger. Appellants Opening Br. at 4.
The relevant exhibit shows that two meat sandwiches were served only on
Fridays, however, and indicates that there was food in each Fridays brown bag
meal other than the meat sandwiches. See R. doc. 52, PE 11. This showing is
insufficient to demonstrate cruel and unusual punishment. Cf. LaFevers, 936 F.2d
at 1120 (holding prisoner given three meals each day does not state Eighth
Amendment claim).
Defendants are entitled to summary judgment on plaintiffs claims that his
Bhagvad Gita was unlawfully seized during the lockdown. Although his claim for
money damages for the alleged unlawful seizure does not require exhaustion of
administrative remedies, see McCarthy v. Madigan, 503 U.S. 140, 149 (1992),
plaintiffs evidence (as opposed to his allegations) fails to name which defendants
participated in the alleged seizure. His evidence is therefore inadequate to
establish the personal participation of any defendant in the alleged seizure of his
book. See Kaul, 83 F.3d at 1213 & n.3.

-8-

The judgment of the United States District Court for the District of
Colorado is AFFIRMED in part and REVERSED in part and the case is
REMANDED for further proceedings consistent with the order and judgment.
The mandate shall issue forthwith.

Entered for the Court

J. Thomas Marten
District Judge

-9-